Epstein: "The Tussle Over Craig Becker"

The Tussle Over Craig Becker
Richard A. Epstein
November 10, 2009

I have long been a fierce opponent of the National Labor Relations Act, which was passed in 1935 at the height of Franklin Roosevelt's New Deal. One core innovation of the NLRA was the creation of a five-member National Labor Relations Board (NLRB) to administer the act with its oft-bitter union elections, disruptive strikes and endless charges of unfair labor practices.

The overtly political nature of the NLRA is revealed in the Board's composition. The president gets to appoint its chairman. By custom, its other four members have been divided equally between the two parties. As might be expected, the Board's output is marked today by a deep cleavage between Republican and Democratic members over literally dozens of issues. Once the Obama Board gets control, many recent Bush rulings will be overturned.

But that is a big if, for trouble is brewing. Right now the Board is down to two members. Its chairman, Democrat Wilma Liebman, was appointed by Barack Obama the day he took office. Its lone Republican member is Peter Schaumber, whose term is due to expire next August. That lean membership has sparked a huge litigation dispute, which leaves lower courts divided on whether two judges count as a quorum. The issue seems headed to the Supreme Court. At issue is whether over 400 decisions issued by the two-member Board are binding.

In order to break this logjam, the president has nominated Craig Becker to one Democratic seat. His nomination has three distinctions. The first, and least important: He is one of my long-time basketball buddies, for whom I have the greatest personal and professional admiration notwithstanding our profound political differences. The second has been Becker's long-time service as an appellate lawyer for the AFL-CIO and the Service Employees International Union. The third is his role as co-chair of the Obama transition team on labor matters. Somehow, I suspect his basketball skills, which may have endeared him to Obama, will not shake the sharp opposition to his nomination mounted by the Republican and management interests.


Richard A. Epstein